covers the whole ground and provides for both voluntary and involuntary cases. Let it be certified to the district court that the bankrupt is entitled to his final certificate of discharge. ORDERED ACCORDINGLY. II. In re GRIFFITHS. United States District Court, District of Massachusetts, Before Hon. JOHN LOWELL, District Judge. Bankruptcy-Discharge.-In cases of involuntary bankruptcy pending on the 22d day of June, 1874, as well as in those since commenced, the bankrupt, if otherwise entitled thereto, is to have his discharge, irrespective of the assent of his creditors or the amount of his assets. [Overruling re Franke, 6 Chi. Leg. News, 414.] LOWELL, J.-The question presented by the register's certificate is whether section 9 of the act of June 22, 1874, applies to pending cases. It was settled by several decisions in Massachusetts, that such amendments of the law did affect all cases. Ex parte Lane, 3 Met. 213; Eastman v. Hillard, 7 Met. 420; re Bartlett, 8 Met. 72; Eddy v. Ames, 9 Met. 585. But as the law has been pronounced to be otherwise in relation to this statute, in an able opinion of Judge Blatchford's, I feel bound to give briefly my reasons for agreeing with the earlier decisions. Section 9 says, in substance, that in cases of compulsory bankruptcy, the provisions of the former laws requiring the payment of a certain proportion of debts, or the assent of a certain number of creditors, as a condition of a bankrupt's discharge, shall not apply; but if otherwise entitled, he is to have the discharge without such payment or assent. And in cases of voluntary bankruptcy no discharge will be granted to a debtor whose assets shall not be equal to thirty per centum of the debts proved against his estate, upon which he shall be liable as principal debtor, without the assent of at least one-fourth of his creditors in number and one-third in value; and the provision in section 33 of the principal act requiring fifty per centum of such assets, is hereby repealed. might depend, in some case, upon acts done before it took effect." 3 Met. 215. The statute in ex parte Lane was much more like a retrospective act than is that of 1874, because it actually deprived the insolvent of a discharge for a preference given before the act went into operation. This law neither creates new frauds nor relieves a bankrupt from the consequences of any which he has committed, but merely lightens somewhat the arbitrary conditions before imposed on honest bankrupts as a preliminary to obtaining a certificate. Such a law is always held to be remedial. In re Billing, 2 B. R., 161; Revere v. Newell, 4 Cush. 587. It is said that one section of the amended act explicitly declares its applicability to pending cases, and another limits itself to cases begun after a certain day. This is true of those sections. But most of the sections leave the matter to interpretation, and must be judged by the subject-matter. Thus, section fourteen says that d proceedings may be discontinued on the assent of a majority of whether begun before or after June 22. the creditors. There can be no doubt that this covers all cases, To settle a case in tha: way may disappoint some hopes of creditors, but it is remedial. and disturbs no vested rights. So of the section now under consid eration. The words seem plain to my apprehension; and the cases cited show how such laws have usually been understood. • I do not mean that there may not be many pending cases which have passed the stage at which the law would be applicable to them, in which, for instance, the debtor or the creditors may have been already entitled to a decree, which only remained to be formally pronounced when the new law went into operation. But, speaking generally, I say that the law was prospective, and appliec to all cases in which the actual right had not been acquired, and that all inconsistent acts are unconditionally repealed. A much more difficult question, in my judgment, may arise ir respect to voluntary cases, namely, whether the assent referred to's that of the given number and value of all creditors who have proved their debts, or only of those to whom the bankrupt is liable as principal debtor; but as this is a compulsory case, that point DISCHARGE GRANTED. need not be decided now. NOTE. -The difficulty which the learned judge suggests, arising out voluntary cases, is solved by Mr. District Judge Hopkins, in the follow.”, opinion. III. In re PERKINS et al. It is plain, I think, that the section, on the face of it, applies to all cases in which a discharge is applied for after the passage of the act. It was so explained to the house of representatives by Mr. Tremain, who had the bill in charge, (Congressional Record, June 17, 1874, p. 60), and the words are almost precisely like those of the statute which was so construed in ex parte Lane, 3 Met. 213, in which Wilde, J., speaking for the court, said: This court can have no authority to grant a discharge against a prohibition in the United States District Court, Western District of Wisconsin, statute." And the other cases cited are similar. In all, the law was changed without any express application to future or past cases, and the court unhesitatingly applied it to both clases. This construction is aided by the express words of repeal which are found in sections 9 and 21. The repeal is unqualified, and I know of no rule which will authorize me to limit the scope of the enactment of repeal, unless it were, indeed, to save the rights or titles already vested. September 26, 1874. Before Hon. JAMES C. HOPKINS, District Judge. 1. Discharge of Bankrupt-Amount of Assets-Consent of Creditors.From the fact that section 9 of the amendatory bankrupt act of 1874 repeals the pre sion of section 33 of the original act, which prohibits the discharge of the bankrupt less his assets pay fifty per cent. of the debts proved against his estate, or unless a majority in number and value of his creditors consent; and from the further fact that th repeal carries with it the repeal of section 1 of the act of July 27, 1868 (15 Stat #27 and also of section 1 of the act of July 14, 1870 (16 Stat. 276), by which section 33 of the original act was amended; and from the further fact that the remaining provisions section 9 of the amendatory act of 1874, which provide that in cases of compulsory bankruptcy, the bankrupt shall be entitled to his discharge without reference to the amount of his assets or the consent of his creditors, and that in cases of involuntary bankruptcy, the bankrupt shall not be entitled to his discharge unless his assets shall t equal to thirty per centum of the debts, or unless he shall have the consent of ore fourth in number and one-third in value of his creditors,—are prospective only and do not apply to pending cases;-it is held, that bankrupts, both in voluntary and compuls-?) cases commenced before the 22d day of June, 1874, may be discharged, without rekr ence to the question of the amount of assets, or the number of creditors assenting, pro And this brings me to what I venture to call the fallacy that such a change in the bankrupt law is retroactive if it is made to affect pending cases. A law which discharges debts already contracted, may well be called retroactive; and this law, if retroactive at all, would be so not merely as to cases begun, but as to contracts entered into before its passage. But it is well settled that a mere modification of the conditions upon which a discharge shall be granted to bankrupts, is not retroactive. "It is clear," says the eminent jurist already quoted, "that the appellant had no vested right to a discharge at the time of filing his petition. Such a right could be acquired only by proving, at the time of applying for a certificate of discharge, that he had in all respects complied with the provisions of statutes 1838 and 1841 (the latter of which was passed after he had been adjudged an insolvent), by which only a right could be acquired. The latter statute, therefore, is not to be considered a retrospective act, disturbing vested rights, but as altoEffect of Renewal Notes.-In fixing the time when the debt was con gether prospective in its operation, although it (the discharge) tracted, if notes have been given in renewal of other notes, the debt will be deemed t vided they comply with the law in other respects. Affirming in part, and denying ir part, re Franke, 6 Chi. Leg. News, 414.] 2. Effect of Debts Contracted Before the First of January, 1869 But although the acts of 1863 and 187) (above stated, may not be repealed, yet as 11 debts contracted before the 1st day of January, 1869, the bankrupt is entitied to his d charge without reference to the amount of his assets. [Acc. Re Franke, 6 Chi Le News, 414.] 3. The case is stated in the opinion. Cassody & Carpenter and Geo. B. Smith, for bankrupts; Orton, Keyes & Chynewoth, for creditors. HOPKINS, J.—The above named bankrupts, who were adjudged such, on their own petition, in March, 1873, in January last filed a petition for their discharge. Parker & Stone, two of their creditors opposed it, on the ground: Ist, that their assets did not amount to 50 per cent. of their debts; and, 2d, that they had not the assent of a sufficient number of their creditors. These objections, although filed before the recent amendments, were not brought to a hearing until after; and, as a matter of course, the first question which arose was as to the effect of those amendments. The counsel for the creditors claimed that the amendments applied and had changed the prior conditions upon which a discharge might be granted, and maintained that under section 9, of the act of June 22, 1874, these bankrupts, as these proceedings were voluntary, could not be discharged unless their assets were equal to 30 per cent. of their debts, or the prescribed number of their creditors had filed their consent thereto; that the other exceptions in section 33 of the original act, as amended, were repealed, and that it was now immaterial when the debts were contracted; that no discharge could now be granted unless the assets equaled 30 per cent. of all debts. These various positions were controverted by the bankrupts counsel. So it becomes necessary, first to determine whether the provisions of section 9 of the act of 1974, apply to cases pending, where an adjudication had been made before that act passed. On this question I am assisted by the opinion of Judge Blatchford in re Franke, 6 Chi. Leg. News, 414. In that case he holds that this section (9) is prospective only, that its provisions do not apply to pending cases, and, that the provisions upon the same subject in the prior acts, are not repealed by section 21 of the act of 1874, as to pending cases, because (he says) the provisions (of section 9), “have reference only to cases commenced after the passage of the act of 1874." bankruptcy now pending or to be hereafter pending," from which, provided. If this was all there was of the 9th section, I should hold that This sec the provisions of the prior law in reference to the conditions upon number of his creditors thereto. But these provisions, according to our construction, only apply to cases commenced after the passage of the act, and do not authorize with the provisions of the prior statutes. a court to order a discharge in pending cases without a compliance and reduces the value of assets from fifty to thirty per cent. and the The next provision of the section (9) applies to voluntary cases, proportion of creditors from one-half to one-fourth, to entitle a party to a discharge. But this provision, like the preceeding one, only applies to future If this were cases and does not affect the law as to existing cases. all there was of the section, I should have no hesitancy in holding that the power of the court in granting discharges in pending cases was not changed. But it is not all. After prescribing these new conditions as to future cases, it reads, “and the provision of section 33 of said act of March 2, 1867, requiring fifty per cent. of such assets is hereby repealed." This cannot be treated as mere tautology. It must have some significance. It is true that section 33 had been amended by the act of July 27, 1868, 15, U. S. Stat. at L. 227, by inserting, among other things, in lieu of the word "pay," the words "equal to," but the fifty per cent. clause was retained.. The same section was further amended by the act of July 14, 1870, 16, id. 276, by declaring that the second clause of section 33, of the act of 1867, as amended by the act of 1868, should not apply to debts contracted prior to the first day of January, 1869. Now, it seems to me that the obvious intention of this repealing The conclusion that section 21 does not repeal the prior statutes as to pending cases, is incontrovertible, provided section 9 does not apply to such cases, for there would be no inconsistency between the acts unless they both applied to the same case or cases. So when it is settled that the last act refers only to future cases, it follows as a necessary sequence that the former acts are not repealed as to pending cases. I fully concur with the learned judge in his interpretation of the amended act, and agree with him that the provisions of the 9th section apply only to cases commenced after its passage. His views are in accord with those I expressed in Ham-clause in section 9, was to repeal the existing law requiring assets lin v. Pettibone, 1 vol. Central Law Journal, page 404, same case, 10, N. B. R. 173, in construing another provision of the act of 1874. I held in that case that section eleven applied to cases commenced after the passage of the act, and was not intended to apply to cases pending when passed, so as to make contracts valid that were void by the terms of the prior statutes (Hackly v. Sprague, to Wend. 113; Morton v. Rutherford, 8 Wis. 298; 2 Wis. 2371;) and that the repealing clause in section twenty-one was inoperative, except as to cases where the provisions of the amended act applied, and that as those provisions, then under consideration, did not apply to pending cases, the prior statutes were in force and unaffected by the repealing clause of the amended act. The learned judge, ir his opinion, referred to section 17, not noticed by me, as bearing upon the question as to what cases Congress intended the provisions of the amended act to apply. In that section it is enacted that "its provisions shall apply to cases of of the value of fifty per cent. of debts as a condition of obtaining a discharge. Unless this was the intention of Congress, the clause is destitute of meaning or operation. It is an express repeal of the provision of what was evidently supposed by Congress to be the law. It is different from the repealing clause in section 21, which depends wholly upon repugnancy. Judge Blatchford construed it as only repealing the section as originally passed, leaving the act of 1868 amending it in force. I think such construction too strict, and as not carrying out the palpable intention of Congress. It virtually nullifies the whole effect of the clause. Technically, the 33d section of the act of 1867, in such respects as it had been changed by the amendatory act of 1868, had been repealed; so that unless the clause can be construed as embracing not only the original section and its amendments or the section as amended," as it is spoken of in the act of July 14, 1870, it really has no significance or operation. It was unnecessary to insert such a clause for the purpose of giving effect to the 30 per cent. clause which preceded it, for that being inconsistent with the 50 per cent. clause in the prior statutes, was repealed by implication, so that unless it repealed the 50 per cent. requirement in the prior acts, I do not see that any effect can be given to it, which is contrary to all rules governing the construction of statutes. It is uniformly held to be the duty of courts to so construe a statute as to give effect to every part and clause if possible, and in this case effect can only be given to this clause, by holding that the repeal covers the 50 per cent. clause in the original section, and in the amendments of 1868. I am, therefore, constrained to differ with the learned judge upon the meaning of this repealing clause, and must hold that the repeal of the provision, "requiring 50 per centum of such assets," applies to the amendatory act of 1868, as well as to the act of 1867. The changes made by the act of 1874 are clearly in the interest of the debtor, and may be regarded as a disapproval by Congress of the energetic provisions of the original act as to him, and as ex pressive of its intention to relieve him of many of its requirements, among which the conditions imposed upon his obtaining a discharge, were perhaps the most embarassing. Having been often needlessly thrown into bankruptcy and ruined in business, it was not unnatural to increase the facilities for his discharge, by authorizing the court to order a discharge without reference to the amount of his assets in cases theretofore commenced. As the creditor had previously possessed great facilities for proceeding against him, it is apparent that Congress meant to give him increased facilities to obtain his rights, a discharge. This seems to be the spirit and meaning of the act of 1874; and I therefore hold that parties in both voluntary and involuntary cases, commenced before the 22d of June, 1874, may be discharged without reference to the question of the amount of assets, or the number of creditors assenting, provided they comply with the law in other respects. But if I am wrong in this view, there is another answer to the objections interposed. If the statutes of 1868 and 1870 are in force, they do not include debts contracted before the 1st day of January, 1869. The claims proved up by the creditors opposing the discharge, are upon notes dated since that time, but the evidence, on the hearing, showed that they were given in renewal of notes given for a debt contracted before the 1st day of January, 1869. Now when was the debt contracted—when the renewal notes were cannot sue his principal at law until he has paid, and in such case, the suit is not upon the note but for money paid at the request of the principal. But the contract that the principal will pay the surety, if he has to pay the debt, arises at the time of making the instrument. The promise is implied from the request and signing. The obligation of the principal arises when the surety becomes liable for his debt. Stedman v. Martine, 15 East, 427. The surety's right of action is not complete until he pays; so the statute of limitation does not begin to run until that time. This liability of the principal is recognized by the bankrupt act in the provision that allows him to prove the claim before payment. I therefore hold that within the meaning of the bankrupt act, the liability of the principal to his surety must be considered as having been contracted when the instrument was signed. This conclusion is supported by the cases of Mace v. Wells, 7 Howard, U. S. R. 272; Baker v. Vasse, 1 Cranch, C. C. R. 194; Craft v. Morse, 4 Comstock, 604, and Van Landan v. Coribie, 8 Taunt. 550, 3 B. & Ald. 13. As in this case the signing was before January 1, 1869, it necessarily follows that the opposing creditors do not occupy a position to insist upon payment of any portion of their debt before it can be discharged. Their objections are overruled and DISCHARGE Ordered. 2. Case in Judgment.-Where the charter of a railroad company provided that if, in condemning land for the roadway, the owner should be dissatisfied with the award, the company might, after the viewers had made their report, by tendering to the owner and paying into court the damages by them assessed, proceed with the construction of their work, as fully as if no disagreement had arisen; and where a jury of viewers reported the damages at $75, and, the owner objecting, other viewers were appointed, who afterwards assessed the damages at $175, which ing in of the report of the first viewers, paid into court the amount of damages by them second assessment was confirmed by the court; and where the company, upon the comassessed, and thereupon entered upon the land and proceeded with the construction of their road across the same, the owners not objecting to such entry: and such road hav given or when the liability was incurred? Notes are but the evidence of a debt, and the holder may surrender them and recover on the original consideration at his option. They are presumptively but an extension of the time of payment. Cole v, Sacket, 1 Hill, 516. The Kimbal, 3 Wallace, 37. The relation of debtor and creditor is considered for remedial purpose as having existed from the origin of the liability, and on application for a discharge, a bankrupting been constructed and public travel established over it, and the company having should be allowed to show when the debt originated or was contracted, and if before the 1st of January, 1869, I don't think a note given after that time would bring it within the category of a debt contracted after that date. But it is insisted that this is not a complete answer to the objection, as the opposing creditors, Parker & Stone were sureties for the bankrupts upon the notes, and have paid them and proved their claims as sureties thereon. This is so, but the evidence shows also that they were sureties upon the original notes given before the 1st of January, 1869. The proof also shows that they did not pay until after January, 1869, and that they have proved their claim, as of the date of payment, and they insist that as between them and the bankrupts the debt must be considered as contracted at that time. Section 19 of the bankrupt act authorizes sureties, endorsers and persons liable for the bankrupt, to prove the debt for which they are liable, when not proven by the creditor, without first paying it, and such debts being provable are released by the discharge. Now does the payment change the relation of the parties? A. surely failed to pay the increase of damages fixed by the second jury ;—it is held, that the land. owner cannot maintain ejectment. By permitting the company to enter without prepay. ment of the land-damages, he waived his right to the remedy by ejectment, and elected to rely solely on his remedy to compel payment of the damages. The facts are fully stated in the opinion. 7. H. Shanklin and M. A. Low for appellants; S. H. Corn and Thomas E. Turney, for respondent. WAGNER, J., delivered the opinion of the court. This was an action of ejectment to obtain possession of a part of a lot in the town of Cameron, upon which the Chicago and Southwestern Railway had constructed its road. The defendant in its answer, alleged that during the years 1870 and 1871, the company located and constructed its road over the land described in the petition, and on the 23d day of February, 1871, commenced the necessary proceedings in the circuit court to obtain the right of way over said land; that commissioners were appointed to assess the damages sustained by the plaintiff, by reason of the appropriation of the land to the use of the company; that on the 4th day of March, 1871, the commissioners reported the damages to be the sum of seventy-five dollars, which sum of money the company paid the clerk of the court for the use of the plaintiff; that exceptions to the report were duly filed by the plaintiff, and the report was set aside, and other commissioners appointed to re-assess the damages, at the August term of court; that upon the 15th day of March, 1871, the railway company entered upon the land and proceeded to construct its road thereon, and did construct its road, and continued to occupy the same until October, 1871, when it leased its whole line to the defendants, who have had possession and been running regular trains thereon ever since. The replication stated that the commissioners appointed to reassess the damages, report the same at one hundred and seventy-five dollars, and the court at its August term thereof, for 1872, confirmed the report in favor of the plaintiff, and against the company for that sum, and made an order, conditioned upon the payment of the judgment, that the right of way over the land, for the use of the road, should vest in the company. It was admitted that the amount assessed by the last commissioners had never been paid. The court then declared the law to be for the plaintiff and gave judgment accordingly. ing was had. It is very clear from the record, that the plaintiff was cognizent of all the facts, and knew every step taken by the company in regard to the location, construction and operation of the road over his property. He made no objections whatever to anything that was done in that report, only objecting to the report of the commissioners, on account of the inadequacy of the assessment. He pursued the statutory course, by having new commissioners appointed, and his damages raised, but then his interference ceased. The charter of the company under which the proceedings for condemnation were had, provides, that the persons appointed to view and value the lands, shall file their report in the office of the clerk of the circuit court, of the county in which the land is situated, and if no valid objections are made to the report, the court shall enter judgment in favor of said owner, against such company, for the amount of the damages assessed, and shall make an order vesting in the company the title to the land; that objections to the report must be filed within ten days after filing the report, which objection the judge may examine and confirm, or set aside the report and appoint three other viewers, who shall proceed in the same manner until the report is confirmed; provided, in order that the progress of the work may not be impeded, after the viewers have filed their report as aforesaid, the company, after having made a tender of the amount of damages to the person entitled to the same, or made a deposit thereof with the clerk of the court in which the case is pending, shall be authorized to proceed in the construc-apprehension in the present case. tion of the work, as fully as if no disagreement had arisen. The main ground insisted upon by the plaintiff's counsel in support of the judgment below, is that the law is unconstitutional, because it takes private property for public use, without providing the owner with adequate means of obtaining compensation. In the case of Walther v. Warner (25 Mo. 277) it was held that legislative acts authorizing the taking of private property for public use, are unconstitutional, unless they provide the owner with a proper remedy to obtain a just compensation; and that the remedy must be an efficient one, a mere judgment against a private corporation not being sufficient. In that case the company instituted proceeding, to obtain title of land on which it had located its road. A judgment was rendered against the company for the damages assessed, and an order was made transferring the title to the land, to the company, and the court decided that actual payment of the damages was essential to the vesting of the title in the company. There can be no question of the justness or soundness of the rule above laid down. No man can be deprived of his property, even in the exercise of the right of eminent domain, unless he is compensated therefor, and a mere judgment which might turn out to be wholly uncollectable would not be a compensation. Before the title can be absolutely vested, by virtue of such proceedings, payment becomes indispensably necessary. But it is a different question that we are here dealing with. There is no pretence here that the defendant has acquired a valid, legal title, but the point presented for consideration, is whether the cir.cumstances connected with its taking possession of the property, and constructing its track, and operating its road, will preclude a remedy by the action of ejectment. Nearly all the American states have the same constitutional provision that we have, and many of them possess a similar statute to the one under which this proceed * The case of McAulay v. Western Vermont Railway (33 Vt. 311), is strikingly in point. There, the parties not agreeing as to the price of the land, the defendants procured the damages to be appraised by commissioners in the manner provided by law. After the construction of the road on the premises had commenced, the plaintiff appealed from the award of the commissioners, and a reappraisal took place by other commissioners appointed by the court. The road was completed and put in operation, but the money was not paid, and the plaintiff brought ejectment to recover the premises. In delivering the judgment of the court, Redfield, Ch. J., said: "It being admitted, as it seems to be, that the plaintiff had full knowledge of the proceedings of the company to locate and construct their road upon his land, before and during all the time of the construction, and that he did not interfere in any way to prevent the occupation of the land for the purpose of the road, otherwise than by forbidding the hands working on the road until his damages were paid, and that on a single occasion, it becomes an important enquiry, whether he can maintain ejectment for the land, by reason of the non-payment of his damages. * It is undoubtedly true that according to our general railroad statutes, and the special charters in this state, the payment or deposit of the amount of the land damages assessed or agreed, is a con dition precedent to the vesting of the title, or of any right in the company to construct their road, and that if they proceed in such construction without this, they are trespassers, and this has been repeatedly so held by this court. This may have led to the misBut it is certainly a very serious misapprehension. In these great public works the shortest period of clear acquiescence, so as to fairly lead the company to infer that the party intends to waive his claim for present payment, will be held to conclude the right to assert the claim in any such form as to stop the company in the progress of their works, and especially to stop the running of the road after it has been put in operation, whereby the public acquire important interests in its continuance. The party does not, of course, loose his claim, or the right to enforce it, in all proper modes. He may possibly have until the legislature cut it off. But it is certain, according to the some rights analagous to the vendor's lien in England and here, English decisions, that he cannot stop the works, and especially the trains upon the road, if he has in any sense, for the shortest period, clearly given the company, either by his express assent, or by his silence, to understand that he did not intend to object to their proceeding with their construction and operation. In the present case it is not precisely a parol license under which land would be complete, with the addition of the fact of payment, the company claim to have built the road. The record title to the or the deposit of the amount of the appraisal. That is a fact resting always in pais, and being so, although a condition precedent, by parol merely. The waiver may be by parol, as well as the permay be waived by the party-in whose favor it exists-and this it * * formance, and the waiver may be partial as well as total. If these allow, then, a waiver in fact, either express or implied by acquiescence in the proceedings of the company, to the extent of not insisting upon prepayment as a condition precedent, but consenting to let the damages be and remain a mere debt, with or without a lien upon the road bed, as the law may turn out to be, then it is impossible to regard the defendants, in any sense, in the light of trespassers or liable in ejectment." As bearing further on this point, see the case of Baker v. The Chicago, R. I. & P. Railway, decided at this term [supra, The company commenced proceedings under the statute for condemnation, and an award of commissioners was only given for this; plaintiff appealed, or what is the same thing, filed his objections, and had the amount raised. But he did not attempt to obstruct or in any wise impede the progress of the work. The plain inference was that he waived his right for prepayment of his damages and only intended to follow his remedy on his judgment. His conduct surely led the company to believe such was his purpose, and induced them to pursue a course and expend large sums of money which otherwise they would not have done. If plaintiff intended to rely on his rights and make present payment a condition precedent, he should have objected and forbidden the company to interfere or do any work on his land, till the question of damages was settled. But this he did not do, he acquiesced in the proceedings of the company to the extent of not insisting upon prepayment as a condition precedent, and after having done so, we do not think that he can maintain ejectment. If, from negotiation in regard to the price of the land or for any other reason, there is just ground of inference that the works have been constructed with the express or implied assent of the landowner, it would seem wholly at variance with the expectation of the parties, and the reason of the case, that the land-owner should retain the right to enter upon the land or to maintain ejectment. There are other effective and sufficient remedies. A court of equity would unquestionably interfere, if necessary, and place the road in the hands of receivers, until the damages were paid from the earnings. 2 Redf. Am. Railw. Cas. 2d Ed. 253. But the only question that we are called upon to decide, is, whether under all the facts and circumstances of this case, ejectment will lie, and we think it will not. The judgment must therefore be reversed, and the cause remanded. The other judges concur, except Judge Sherwood, who is absent. Notes and Queries. ELKO, NEVADA, Sept. 11, 1874. EDITORS CENTRAL LAW JOURNAL:-Rather a novel question has arisen here, upon which I would like to have your opinion. A. sues B. for $200in justice's court, and under the evidence was undoubtedly entitled to that much, but the jury returned a verdict for but $100-upon which judgment was entered. A. immediately gave notice that he would appeal the case, and protested against an execution being issued, but against his wishes it was issued-the money collected, and satisfaction of the judgment entered by the justice. A. then appealed. Can the appeal be sustained, and what is A.'s remedy? The appeal is all correct, except that it is from a satisfied judgB. ment. ANSWER. We are not familiar with the local statutes of Nevada regulating appeals, and cannot say what power the superior court has on appeal. But either by appeal or certiorari the superior tribunal should give A. a remedy, and will doubtless do so on proper application. We are much obliged for the following, and hope other readers of the JOURNAL will aid each other in the same way in like cases: But in this case there was a good executory contract (Moss v. Green, 41 Mo. 389. on mutal promises) which contract, according to W. F., has been entirely performed by the assignor, and as it would be a fraud on the assignor, for the assignee to refuse to carry out his agreement, equity will interfere notwith standing the statute of frauds. Farrar v. Patton, 20 Mo. 81; Dickerson v Chrisman, 28 Mo. 134; Townsend v. Hawkins, 45 Mo., 286; Sugget v. Cason 26 Mo. 221; Self v. Cordell, 45 Mo. 345. Frauds, etc., are not in the statute. Groves v. Fulsome, 16 Mo. 543. WEEKLY NOTES OF CASES Argued and Determined in the Supreme This publication, of which the number on our table is a specimen number only, is modeled after the "Weekly Notes," published by the English "Incor ated Council of Law Reporting." We have been confidently looking for such publications to spring up in some of the states where the reports are two or three years behind the decisions--for instance, in Illinois and Tennessee. We formerly (ante, p. 72) had occasion to speak approvingly of a similar undertaking by Mr. Chaney, being a quarterly digest of the decisions of the Supreme Court of Michigan. That publication, excellent as it was, we regret to say, did not pay the printer, and is now issued gratuitously by a publisher as an adver tising medium. We hope the present venture will have better success; although since Pennsylvania has several enterprising law journals, which publish in full all the decisions of the courts of that state (we presume) that are worth publishing, and that very soon after they are pronounced. we think there is less need of it in Pennsylvania than in some other states, The following from the publisher's prospectus will indicate the scope of this publication: the "The Weekly Notes of Cases is intended to meet the wants supposed to be felt by the profession in the following particulars: First, in regard to the cases determined in the supreme court of the state. It is intended to give notes which shall preserve the numerous cases that it is impossible to incorate into the full official reports, which shall give a succinct account of what is argued and determined in that court, in a compact form, and so serve as a guide to the full reports, and which shall give such account immediately upon determination of the causes, as it is found impracticable to do in the more elaborate reports. Secondly, in regard to the rulings of our local courts, both state and federal. These are not at present systematically reported at all, not is it possible to do so on the plan pursued by our present weekly law publications. It is intended to give notes of these which shall preserve the rulings of the courts in the numerous practice-cases, whether written opinions are filed or not; and shall give the practitioner information, from week to week, of the decisions of these tribunals, many of which may never be reported, because not appealed from, and many more of which it is important for him to know when they are made, many months before they reach the appellate courts. As to the mode of reporting: It is intended to give notes,' not full reports, of To state what the court in each case held, not what the judge who delivered the opinion said. The cases cited will be given, as far as practicable, with the names of the counsel engaged. And the endeavor will be made to report all causes determined, down to the Saturday preceeding the day of publication." cases. LAW OF JUDGMENTS. By A. C. FREEMAN, Second Edition, Revised and the second edition, whose value has been increased by the addition of a large The first edition of this work appeared in January, 1873, and already we have number of cases. The word Judgment is used by the author as equivalent to the acts of judicial tribunals finally determining the rights of parties in civi actions and proceedings at law and in equity. The author has demonstrated SPRINGFIELD, MISSOURI, Sept. 28, 1874. that he is an accomplished lawyer-for none but such could produce a work EDITORS CENTRAL LAW JOURNAL:-In answer to W. F. (ante, p. 482), which displays, on almost every page, skill in treatment and good judgment in with regard to assigning a lease from month to month, I would cite as follows: the selection and use of the materials at his disposal. The Law Reports. The lease itself is not within the statute of frauds. Wag. Stat. p. 655, 1. state and federal, show that the Pacific coast possesses in proportion to The assignment of the lease probably is within the statute, though I find no numbers, more able lawyers and judges, perhaps, than can be found in any decision in Mo. Reports. See Brown on Frauds, Chap. 4, 45, 46. The other portion of the country, and Mr. Freeman's work is one in which the language of the statute is positive. W. S., p. 655, 2. Though the argument profession there have a good reason to feel a just pride. A writer on the subthat interests, permitted to arise by parol should not require writing for trans-ject of Judgments is constantly tempted to get into the field of executions of fer, is strong. Wagner's Statutes, 879, 10, 11, may have some bearing on judicial sales, and if he once yields to the temptation, the character of his treatise will be changed. If this latter subject were exhaustively treated it this case. |